[2023] KEHC 23544 (KLR)

Republic v Director of Public Prosecutions & another; Makokha & 5 others (Exparte) (Judicial Review E002 of 2023) [2023] KEHC 23544 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23544 (KLR)

Republic of Kenya

In the High Court at Bungoma

Judicial Review E002 of 2023

REA Ougo, J

October 12, 2023

IN THE MATTER OF ARTICLE 23(3)(f) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT 2015 AND IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Ethics and Anti-Corruption Commission

2nd Respondent

and

Rachael Makokha

Exparte

Agnes Bowen

Exparte

Jared Okungu

Exparte

Isaac Kiptanui Ruto

Exparte

Patrose Leshinka

Exparte

David Kigen

Exparte

Judgment

1. Before this court is a Notice of Motion Application dated 17th May 2023 and filed on 19th May 2023, brought under Order 53 Rule 3 & 4 of the Civil Procedure Rules 2010, Section 8 & 9 of the Law Reform Act Cap 26 and Article 23(3) of the Constitution of Kenya 2010. The Applicants seeks the following orders: -1. That the Honorable Court be pleased to grant: -a.An Order of Certiorari to remove from the Honorable Court and quash the decision of the 1st Respondent to prefer criminal charges against the applicants.b.An order of prohibition directed towards the 1st respondent from preferring criminal charges against the ex-parte applicants and barring the 2nd Respondent from arresting, detaining, instituting and/or undertaking to proceed with any criminal charges against the Applicants on the same factsc.An order of Mandamus directed to the 1st Respondent to compel them to terminate the charges against the Ex-parte Applicants.2. That this Honorable Court be pleased to stay proceedings in Bungoma EACC No. 1 of 2023 pending the hearing and determination of this Application.3. A declaration that the decision by the 1st Respondent to prefer criminal charges against the ex-parte applicant was invalid, void and of no effect.4. A declaration that the 1st Respondent is in breach of its duty by preferring criminal charges prematurely.5. A declaration that the 2nd Respondent is in breach of its duty by failing to follow the recommendation of the 1st Respondent to conduct further investigations.6. That the Honorable Court be pleased to give orders as it may deem fit and just to grant.7. That cost of the Application be provided for.

2. The Application is supported by a statutory statement dated 17th May 2023 sworn by Patrose Leshinka.

THE APPLICANTS CASE 3. The Applicants case is that the ex-parte applicants were involved in the procurement process under tender number IFB NO. RVWSB/LVN/AFDB/KTSWSP/2017-2018, which was floated through funding from the Africa Development Bank (AFDB). On 1st February 2023, they were arrested on the 1st Respondents instructions for allegedly flouting procurement laws alleged neglect of official duty. On 2nd February 2023, they were charged in Bungoma Law Courts with the following: -Count I:- Willful failure to comply with the applicable laws relating to procurement contrary to section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003. The Particulars of the Offence being that on 1st October 2018 at Nakuru, being members of the tender evaluation committee for tender IFB NO. RVWSB/LVN/AFDB/KTSWSP/2017-2018 LOT 1 for construction works for Malaba Water Supply and Sanitation Project, jointly and willfully failed to comply with the law relating to procurement, to wit, Section 83 of the Public Procurement and Asset Disposal Act 2015 and Regulations 16(5)(b) of the Public Procurement and Asset Disposal Regulations, 2006 by recommending the award of tender to Mactebac Contractors Limited without conducting due diligence to confirm authenticity of its qualifications.Count II:- Willful failure to comply with the applicable law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003. The particulars being that on 1st October 2018 at Nakuru, being members of the tender evaluation committee for tender IFB NO. RVWSB/LVN/AFDB/KTSWSP/2017-2018 LOT 1 for construction works for Malaba Water Supply and Sanitation Project, jointly and willfully failed to comply with the law relating to procurement, to wit, Section 82 of the Public Procurement and Asset Disposal Act, 2015 for correcting the tender sum for the sum of the said tender from Ksh. 722,832,197. 09 to Kshs. 796,473,892. 15. Count III-David Kigen - Neglect of Official Duty by a public officer contrary to section 128 of the Penal Code Cap. 63, laws of Kenya. The particulars of the offence being that on 18th October 2018 in Nakuru County within the Republic of Kenya, being an officer, to wit, Acting Head of Procurement Rift Valley Water Services Board and concerned with the procurement of tender no. IFB NO. RVWSB/LVN/AFDB/KTSWSP/2017-2018 LOT 1 for construction works for Malaba Water Supply and Sanitation Project, willfully neglected to ensure that due diligence had been done before providing professional opinion to the Chief Executive Officer of Rift Valley Water Services Board, Hosea Kipyegon Wendot recommending the award of the said tender to Mactebac Contractors Limited.

4. The Ex-parte Applicants have since been interdicted and are on half pay thereby losing their livelihood which consequently affects their standing in society. That the 1st Respondent has no lawful reason for the preference of criminal charges against the applicants. The charges were without due regard to section 4(2)(f) of the Public Procurement and Asset Disposal Act. Furthermore, the Respondents charged the Applicants without regard to the fact that procurement involving the AFDB is guided by the Banks Rules of Procedure for procurement of goods and works as the bank is a multi-agency and exempted from the Kenyan law by section 4(2)(f) of the Public Procurement and Asset Disposal Act. In addition, the charges by the respondents were also in disregard to section 3. 35. 2 of the African Development Bank Rules.

5. That according to the gazette notice Vol. CXXII- No. 42 issued on 24th July, 2020 by the 2nd Respondent, the 1st Respondent referred the investigation file back for further investigations. However according to the 1st Respondents witness statements; they are relying on witness statements from preliminary investigations which demonstrate that no further investigations were carried out.

6. The applicants’ content that the Respondents did not go into the extrinsic evidence of the bid even though they were required by law not to. The applicants maintain that the 1st Respondent acted in bad faith in its decision to charge the Applicants. The charges against the Applicants are injurious to their constitutional rights under Articles 29 and 48 of the Constitution.

The 1St Respondents Case 7. The 1st Respondent opposed the application by filing Grounds of Opposition dated 25th July 2023. It was averred that the application is in bad faith, lame and an abuse of the court process. The tender no. RVWSB/LVN/AFDB/KTSWSP/2017-2018 which forms the subject of Bungoma MCAC/E001/2023 Republic V Rachel Jacqueline Nafula Makokha And Agnes Jerop Bowen & 3 Others was floated by a public body namely Rift Valley Water Service Board hence the Public Procurement and Asset Disposal Act and the Economic Crimes Act are applicable in the event of breach of process. The fact that the project was being financed by African Development Bank does not shield it from the application of Kenyan laws as the same was a loan to Kenya to be repaid by Kenya on completion of the project. The exemption from application as stated under section 4(f) Public Procurement and Asset disposal Act 2015, is only limited to procurement or disposal of Assets between the Government of Kenya and a foreign government, agency, entity or multilateral entity. In this case the procurement was between RVWSB and Mactebac Contractors Limited and hence within the province of Public Procurement and Assest Disposal Act and Anti-Corruption and Economic Crimes Act.

8. The 1st Respondent contends that prayers 3,4,5 & 6 in the application are not within the purview of the Judicial Review proceedings hence incapable of being granted. In addition, the justification for alteration of the awarded tender sum from Kshs. 722832,197. 09 to Kshs.796473892. 15 is a matter to be canvassed at the Anti-Corruption trial court and not within judicial review proceedings. Therefore, the decision to charge the Applicants in BUNGOMA MCAC/E001/2023 Republic V Rachel Jacqueline Nafula Makokha And Agnes Jerop Bowen & 3 OtherS is based on valid, relevant evidence and public interest. The Application has failed to disclose any evidence of bias, ultra vires, illegal, excessive or abuse of powers by the Respondents.

The 2Nd Respondents Case: 9. The 1st Respondent in opposing the application filed Grounds of Opposition dated 14th June 2023. The 2nd Respondent contends that Article 252(1)(a)(d) of the Constitution and section 11 of the Ethics and Anti-Corruption Commission Act (EACC) mandates it to investigate and recommend to the Director of Public Prosecution matters prescribed under the EACC Act or any other law enacted pursuant to Chapter six of the constitution. Pursuant to section 28 of the EACC Act 2011, the 2nd Respondent is not subject to the direction or control of any person or authority while discharging its statutory mandate hence cannot be directed on whom to investigate and what charges to bring against the Ex-parte applicants.

10. The 2nd Respondent also contends that there is no factual basis to warrant an order for stay by this Honourable Court as the Ex-parte applicants have already taken plea in court and a grant of stay would provide immunity to the applicants curtailing the Respondents from performing their constitutional and statutory mandates and hurt public interest. The orders sought by the Applicants would engender administrative chaos by unjustifiably restricting the 2nd Respondents investigation powers.

11. The 2nd Respondent further contends that the Applicants have not adduced any evidence that the 2nd respondent acted in excess or outside its mandate, in bad faith or maliciously hence orders sought should not be allowed. The 2nd Respondent avers that the application is frivolous and vexatious and the Applicant has failed to demonstrate a prima facie case that irreparable injury will result unless the reliefs sought are granted at this stage. The Applicants allegations of breach of their constitutional rights as provided under Article29 and 48 of the Constitution are unfounded as no evidence has been put before the court. The balance of convenience militates against the orders sought under prayer 3 as it would undermine the proper execution of the powers and functions of the Respondents. The 2nd Respondent maintains that the application and evidence in its support do not meet the threshold required for the orders sought.

The Applicants’ Submissions 12. The Applicants submit that the issue for determination is whether the Applicants have met the threshold for grant of judicial review orders. The Gazette Notice Vol. CXXII-No. 142 (issued on 24th July, 2020: Page 2932) lays bare the fact that the 1st Respondent referred the inquiry file back for further investigations. However, no further investigations were carried out and the 1st Respondent impulsively purports to use facts that have not been well established to prosecute its case. They place reliance on Republic v County Government of Embu Ex-parte Peterson Kamau Muto t/a Embu Medical and Dental Clinic & 6 others (2022) eKLR where the court stated that judicial review is more concerned with the manner in which a decision is made than the merits of the decision; the lawfulness of the process by which the decision is made.

13. The process which was used by the 1st Respondent to prosecute its case was unlawfully since the Gazette Notice shows that the Ex-parte Applicants have had charges leveled against them prematurely and without full consideration of the relevant facts, if any. The process followed by the Respondents to prosecute its case in investigating, arresting and prosecuting the Ex-parte Applicants was neither objective nor procedural. Reliance is placed on Municipal Council of Mombasa v Republic & Umoja Consultants Ltd. Civil Appeal No. 185 of 2001 where the court held that when it comes to judicial review the court is concerned with whether in the making of the decision, the decision maker took into account relevant matters or did take into account irrelevant matters. Therefore, the conduct of the Respondents in deciding to arrest and prosecute the ex-parte applicants stands in violation of the Gazette Notice which is an indication of the extent to which the Respondents are willing to go in an attempt to achieve ulterior motives.

14. That it is prudent for the Office of Director of Public Prosecution to institute charges when proper factual foundations revealed in an offence as provided in section 32 of theOffice of the Director of Public Prosecutions Act, 2013. They cited the case of Patrick Ngunjiri Maina v Director of Public Prosecutions & 2 others (2019) eKLR where the court stated that a criminal prosecution which is commenced in the absence of a proper factual foundation or basis is always suspect for ulterior motive or improper purpose and the case of Republic v Inspector General of Police & 2 others ex-parte Zelea Jakaa Akiru (2015) eKLR where the court held that the prosecution would, of course be expected to bring charges only where the investigations reveal an offence. The Applicants submit that section 33 of the Office of the Director of Public Prosecutions Act mandates the officer to whom a directive is made to comply with such directive and keep the Director informed of the progress made in complying with the directive. However, this process was overlooked as the 2nd Respondents ignored the earlier gazette notice to the effect that the inquiry file was returned and recommended for further investigations.

15. The applicants submit that the prosecution of the Applicants is for purposes other than the enforcement law. That in Republic v Director of Public Prosecutions & 2 others ex-parte Praxidis Namoni Saisi (2016) eKLR the court cited with approval the decision in R v Attorney General exp Kipngeno arap Ngeny High Court Civil Application No. 406 of 2001 where the court stated that before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case.

16. The Applicants further submitted that the 1st Respondent has shown no other evidence than witness statements which were taken prior to the inquiry file being referred and recommended for further investigations. The 2nd Respondent had clearly not complied with the 1st Respondent’s directive to investigate further as evidence by the witness statements and this amounts to unreasonableness in decision making by the 1st Respondent. They also relied on the case Republic v Public Procurement Administrative Review Board & 2 others ex-parte Rongo University (2018) eKLR where the court stated that legal unreasonableness comprises of any or all of the following, namely; specific errors relevancy or purpose; reasoning illogically or irrationally; reaching a decision which lacks an evident and intelligible justification such that an inference of unreasonableness can be drawn, even where a particular error in reasoning cannot be identified; or giving disproportionate or excessive weight- in the sense of more than was reasonably necessary- to some factors and insufficient weight to others. The Applicants maintain that the decision by the 1st Respondent to prosecute the cases lacked an evident and intelligible justification; the decision is an embodiment of a decision that was impulsively, unlawfully and unreasonably.

17. The Applicants submit further that since the tender was floated by AFDB who agreed to fund the programme. Kenya is a member of the AFDB having duly signed the Charter agreeing to its membership hence the court ought to take judicial notice of the existence of a bilateral agreement between Kenya and AFDB. Considering that the Applicants were charged with willful failure to comply with the procurement Act, it is important to note that the Act itself exempts its application from procurements under bilateral and multilateral agreements between the Government of Kenya and a foreign entity. Section 4(2)(f) of the Procurement and Asset Disposal Act states that:“4(2)For avoidance of doubt, the following are not procurements or asset disposal with respect to which this Act applies:(f)procurement and disposal of assets under bilateral or multilateral agreements between the government of Kenya and any other foreign government, agency, entity or multilateral agency unless as otherwise prescribed in the Regulations.”

18. The Applicants relied on the case of Public Procurement Administrative Review Board & 2 others ex-parte Kenya Power and lightning Company (2019) eKlr where the court discussed the exemption under section 4(2)(f) of the Public Procurement and Asset Disposal Act. The court held that:56. This exemption is in line with the legal position that the enforcement of international agreements is governed by international law, and in particular the law relating to treaties, and even though many of the functions of such agreements may be analogous to those of domestic law, their efficacy is not judged in the same manner as domestic law because they operate between parties on an international level and re more likely to result in difficulties of interpretation and enforcement. The main purpose of the section is to avoid subjecting foreign countries and agencies to domestic law, and to facilitate international comity and co-operation with such foreign countries and agencies

19. They also rely on Republic v Public Procurement Administrative Review Board & Another Ex-parte Athi Water Services Board & Another andRepublic v Public Procurement Administrative Review Board Ex-parte Accounting Officer, Kenya Electricity Transmission Company Limited; Energy Sector Contractors’ Association (Interested Party) eKLR (unreported).

20. The Applicants submit that the 1st Respondent acted ultra vires sections 4(2) (f) and 6 (1) of the Public Procurement and Asset Disposal Act by leveling the charges against the Applicants. Sections 6(1) of the Act specifies that a treaty’s provisions shall prevail where there is a conflict between the Public Procurement and Asset Disposal Act and any obligations of the Republic of Kenya arising from the treaty.

21. The Applicants further submit that from the subsidiary loan agreement between the Republic of Kenya and Lake Victoria North Water Services Board (LVNWSB), Annex 3 provides for the Procurement guidelines which states that procurement of works shall be carried out in accordance with the procurement policy for Bank Group Funded Operations (October 2015). It further places the responsibility of due diligence and eventual approval of biding documents on the Bank; the board shall submit the bidding documents for the Bank’s prior review and eventual written approval. Upon the bank’s approval, disbursement of the monies shall be made by the Bank. This is proof of the fact that the Bank had full control of the procurement process from the beginning of bidding up until the disbursement of funds. The Kenyan government didn’t come in contact with the money hence their role was purely supervisory given that the bank protects the funds from procurement stage all the way to payments to contractors. In addition, Article XII of the subsidiary loan agreement, the procurement is to be done to the satisfaction of the Bank in line with the provisions of Annex 3. Furthermore, in regards to the contents of the bid itself, rule 3. 35 of the procurement rules titled ‘examination of bids’ provides that the borrower’s determination of a bid’s responsiveness shall be based on the contents of the bid itself without recourse to extrinsic evidence. Count 1 of the charge sheet then presupposes that the Applicants had a bigger duty than what is provided for by rules.

22. The Applicants pray that the judicial review orders be granted as prayed.

The 1St Respondent’s Written Submissions 23. The 1st Respondent submit the following issues for determination: -a.Whether the procurement undertaken by the Respondent is governed and/or subject to the provisions of the Public Procurement and Asset Disposal Act.b.Whether the decision to the charge them was based on evidence and public interest.c.Whether the Applicants are entitled to the relief sought.

24. On the first issue the 1st Respondent submits that pursuant to the loan agreement between Kenya and African Development Bank entered on 9th January 2016, for Kenya Towns Sustainable Water Supply and Sanitation Program, the borrower was the Republic of Kenya and loan amount was USD 381,191,000.

25. The tender in this case was floated by Rift Valley Water Service Board (RVWSB) and not the Republic of Kenya and contract awarded to Matecbac Contractors Limited at the sum of Kshs. 796,473,892. 15 only. The 1st Respondent submitted that the mere fact that the money expected to fund the project was from the loan advanced by AFDB to Kenya did not in any way render the RVWSB privy to the loan agreement. The terms of the loan agreement annexed by the Applicant doesn’t refer to the tender or the project that was being undertaken by the applicants. In addition, the terms of the loan agreement annexed by the applicant doesn’t refer to the tender or the project that was being undertaken by the Applicants and the terms of the loan agreement doesn’t exclude the state organs including RVWSB from following Kenyan laws and any other laws from applying to projects funded by the loan from AFDB.

26. The 1st Respondent also submitted that section 4(1) of the Public Procurement and Asset Disposal Act provides that the act shall apply to all state organs and public entities with respect to procurement planning, procurement processing, inventory and asset management, disposal assets and contract management. The applicants were employees of RVSWB a public entity governed by the Act. The RVSWB was not party to the loan agreement hence it’s not bound by its terms and conditions. Furthermore, the loan facility was not specific that the loan was to be applied to tender no. RVWSB/LVN/AFDBKTSWSP/2017/18 so as to bind RVSWB to their rules and regulations. RVSWB was duty bound to utilize public resources allocated to it in a prudent manner to avoid wastage. It is a state entity hence bound to ensure the procurement laws were followed with fidelity. The procuring entity was RVSWB, the tender was awarded to a Matecbac Ltd, a Kenyan company and the project funds were allocated by the national treasury.

27. That failure to adhere to the provisions of the Public Procurement and Asset Disposal Act prompted the 2nd Respondent to swing into action to investigate the matter and make recommendations to the 1st Respondent. Therefore, the provisions of section 4(2)(f) of the Public Procurement and Asset Disposal Act does not exclude the application of the Act to tender no. RVWSB/LVN/AFDBKTSWSP/2017/18.

28. On the second issue, the 1st Respondent submitted that the decision to charge the applicants was based on credible and reliable evidence. The issue to charge the applicants was made on 9th November 2022 after the 2nd Respondent had resubmitted the file after further investigations and the applicants were arraigned in court in February 2023. The Applicants were supplied with statements and documentary evidence. The applicants have not shown that the case before the magistrate is hopeless or without evidence.

29. The 1st Respondent submitted that its mandate is provided under Article 157 of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act, 2013 to institute and undertake criminal proceedings against any person before any court of law. By dint of Article 157(10) of the Constitution, the 1st Respondent shall not require consent of any person or authority for commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority. Reliance was placed in the case of James Ondicho Gesami vs Attorney General & Others Petition No. 376 of 2011 where the court held that the DPP is at liberty to prefer charge against any party in respect of whom he finds sufficient evidence to prefer charges. The court further stated that any person required to subject themselves to the normal criminal prosecution process mandated by law where he/she has all safeguards guaranteed by the constitution does not in any way amount to an attack on their human dignity in violation of their constitutional rights. In Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others (2019) eKLR it was held that the court ought not to usurp the mandate of the office of the DPP and that the mere fact that the intended or ongoing criminal proceedings are in likelihood bound to fail, was not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision-making process. An applicant who alleges that he or she has a good defence in the criminal process ought not to invoke the same to seek the halting of criminal proceedings undertaken bonafides since judicial review court is not the correct forum where defences available in a criminal case ought to be minutely examined and determination made thereon.

30. The 1st Respondent submitted that the Applicants have not in any way demonstrated any justification why the court should grant them the orders sought. They contend that the application is devoid of merit and a violation of the principle of expeditious trial as it is solely intended to delay the hearing and determination of the criminal trial.

The 2nd Respondents Submissions 31. The 2nd Respondent singled out the issue for determination, which is, whether the applicant met the threshold for grant of judicial review orders. The 2nd respondents submitted that the allegations by the applicant that the investigation was not concluded, making reference to Gazette Notice Vl.CXX11-No. 42(issued on 24th July 2020; page 2932), was false. The gazette notice was part of the quarterly report submitted by the 2nd Respondent on the status of the cases handled in compliance to section 36 of the Anti-Corruption and Economic Crimes Act (ACECA No. 3 of 2003). Investigations were completed and the file was forwarded for review by the 1st Respondent and who in response concurred with the recommendations in the gazette notice. On 9th November 2022, the 1st Respondent informed the 2nd Respondents that there was sufficient evidence hence the applicants were arraigned in court. The Gazette notice cannot be basis to conclude that investigations were not carried out. It cannot then be said that the decision to charge the applicants by the 1st Respondent was an abuse of powers, irrational or malicious.

32. Article 157 of the Constitution of Kenya and section 28 of the EACC Act mandated the 2nd Respondents to carry out investigation on their own motion hence the applicants cannot seek an order for prohibition against a constitutional mandate. It relied on R v Chief Magistrate Milimani & another; Republic v Judicial Service Commission ex parte Pareno [2004] 1KLR 203-209; and Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703 in support of its case.

Analysis And Determination 33. I have carefully considered the pleadings and the rival submissions presented by the parties. The issues before the court are twofold:a.Whether the respondents are barred from initiating criminal proceedings against the applicant based on the Gazette Notice Vol. CXXII-No. 142 issued on 24th July 2022b.The import of section 4 (2) (f) of the Public Procurement and Asset Disposal Act to the proceedings against the applicants before the Anti-Corruption and Economic Crimes Court.

34. It is not in dispute thatthe gazette notice Vol. CXXII- No. 42 issued on 24th July, 2020 by the 2nd Respondent is to the effect that the 1st Respondent returned the inquiry file to the 2nd respondent and recommended further investigations. The applicants argued the 2nd respondent failed to comply with the directives of the 1st respondent and are relying on witness statements from preliminary investigations which demonstrate that no further investigations were carried out. The 2nd respondent subject to section 11 (d) of the EACC Act is mandated to investigate any acts of corruption. In Alfred N. Mutua v Ethics & Anti-Corruption Commission & 4 Others [2016] eKLR, the court observed that:‘It is also not contested that the EACC is mandated under Section 11(1)(d) of the Ethics and Anti- Corruption Commission Act to investigate and recommend to the DPP the prosecution of any acts of corruption or violation of codes of ethics or other matters prescribed under that Act or any other law enacted pursuant to Chapter Six of the Constitution. Further, under the provisions of Section 35 of ACECA as read with the provisions of Section 11(1) (d) of Ethics and Anti-Corruption Commission Act, upon concluding its investigations, EACC reports to the DPP who examines the report, evidence gathered and makes an independent decision on whether to prosecute or not …’

35. The evidence presented to court is that the suit against the applicants were not instituted in 2020 because of the directive of the 1st respondent. According to the charge sheet, the charges against the applicants were preferred in February of 2023. The decision to prosecute was solely made by the 1st respondent as the 2nd respondent lacks prosecutorial powers. In Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2018] eKLR the court held that:“79. The EACC lacks prosecutorial powers and has to forward all cases it has investigated to the Director of Public Prosecutions (DPP) for prosecution. There is no doubt that the State’s prosecutorial powers are vested in the DPP under Article 157 of the Constitution. The relevant part provides at clause (6) thereof as follows: -The Director of Public Prosecutions shall exercise State powers of prosecution and may—(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(b)take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and(c)subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).80. The decision to institute criminal proceedings by the DPP while discretionary is also not subject to the direction or control of any authority. (Article 157 (1)).”

36. The charges were therefore preferred by the 1st respondent upon its satisfaction that it had received sufficient evidence. The 1st respondent acted in accordance with its constitutional mandate as provided in Article 157 of the Constitution and independently made the decision to prosecute the applicants. The 1st respondent submitted that its decision to charge the applicants was made on 9th November 2022 after the 2nd respondent re-submitted the file to it upon completion of further investigations. The 1st respondent submits that it received credible and reliable evidence. Although the 1st respondent had earlier recommended further investigations, their recommendation did not act as a bar to the prosecution of the applicants. The 1st respondent acted within its mandate when it instituted criminal proceedings against the applicants after arrived at a decision that it had received credible and reliable evidence. There is no evidence from the applicants that the 1st respondent acted outside its mandate.

37. Was the decision of the 1st respondent tainted with illegality, irrationality and procedural impropriety? The Court in Republic v Public Procurement Administrative Review Board & another Ex parte Intertek Testing Services (EA) Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & another [2022] eKLR cited with approval the decision in Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 300 where the court held;“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

38. The applicants have failed to demonstrate that the decision of the 1st respondent was tainted with illegality, irrationality and procedural impropriety, on the contrary the 1st respondent acted in accordance to Article 157 of the Constitution. The applicants also failed to establish that the 2nd respondent failed to conduct further investigations as directed by the 1st respondent. The mere fact that it is relying on the witness statements from the preliminary investigations does not mean that further investigations were not conducted. In my view, both the 1st and 2nd respondents acted within their mandate.

39. I now turn to consider the import of section 4 (2) (f) of the Public Procurement and Asset Disposal Act to the proceedings against the applicants before the Anti-Corruption and Economic Crimes Court. In order to do so, I must take into account that the role of the judicial review court is only concerned with the decision-making process. In Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, the Court of Appeal stated;“Judicial review is concerned with the decision making process, not with the merit itself; the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether the in making the decision the decision maker took in.to account relevant matters or did take into account irrelevant matters……The court should not act as a court of appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision”.

40. The applicability of section 4 (2) (f) of the Public Procurement and Asset Disposal Act is an issue that can only be considered before Bungoma MCAC/E001/2023 Republic v Rachel Jacqueline Nafula Makokha, Agnes Jerop Bowen & 3 Others which is the court that is charged with the jurisdiction to determine the merits of the case mounted against the applicants. This court would act in excess of its jurisdiction if it was to determine the issue raised at this stage.

41. In conclusion, I find no merit in the notice motion dated 17th May 2023 and the same hereby dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED AT BUNGOMA VIA MICROSOFT TEAMS THIS 12TH DAY OF OCTOBER 2023. R.E. OUGOJUDGEIn the presence of:Mr. Hussein h/b Mr. Jamal For the Exparte ApplicantsMiss Omondi For the 1st RespondentMiss Ayunga For the 2nd Respondent